Senate Immigration Bill, Attacked from All Sides, Gains Second Chance

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Senate Immigration Bill, Attacked from All Sides, Gains Second Chance

June 15, 2007

Policy Beat

By Aaron Matteo Terrazas, Dawn Konet, Julia Gelatt

After months of private negotiations that produced a "grand bargain" among a bipartisan group of senators, the immigration reform bill came to a grinding halt when too many senators refused to cut off debate on June 7 and move to a final vote.

However, after pressure from President George Bush and quick negotiations between Senate leaders from both sides, Senate Majority Leader Harry Reid (D-NV) announced on June 14 that the bill would be brought back before the Senate, perhaps as early as the third week in June.

When the vote to end debate and move to a final vote failed on June 7, Senate Republicans argued that more time was needed to consider the many pending amendments on the bill, while Senate Majority Leader Harry Reid (D-NV) claimed critics of the bill were simply stalling, noting that the Senate had already considered over 40 amendments.

President Bush, who was attending the G-8 summit in Germany when the June 7 vote took place, vowed on June 11 to get a bill passed. In addition to a series of public statements and private calls for the debate to proceed, Bush made a rare visit to Capitol Hill to speak with Republican leaders on the issue.

The impasse was finally overcome after President Bush endorsed a plan to devote $4.4 billion in immigration fees required by the new legislation to border and workplace enforcement measures. This eased concerns from some Republican Senators that immigration enforcement measures in the bill would never be implemented. Senate leaders agreed to consider 11 more amendments from each party before voting on the final bill.

Contents of the Bill

The Senate bill aims to boost enforcement of immigration laws, revise the allocation of permanent immigration visas, create a new temporary worker program, and set unauthorized immigrants on a path to legal status.

Triggers and enforcement. The bill sets a number of requirements or "triggers" that would have to be in place before the proposed legalization program or new temporary worker program could begin. These triggers would include:

increasing the number of Border Patrol agents and support staff to 20,000;

installing vehicle barriers, fencing, and ground-based radar and camera towers along the border;

increasing Immigration and Customs Enforcement (ICE) detention space;

implementing an electronic system for employers to verify the work authorization of new employees; and

processing applications from unauthorized immigrants for provisional status, the first step toward legalization, in a timely manner.

The bill includes a number of other enforcement measures, such as collection of biometric data from noncitizens entering and exiting the United States; increased personnel for interior enforcement and immigration courts; and increased penalties for illegal entry, document fraud, employment of unauthorized immigrants, and other violations.

Temporary worker programs. The bill would create a new temporary worker program for five years to allow 200,000 foreign workers to enter for up to two, two-year stints, with one year in their home country between the two-year periods. Only a very small number of temporary workers would be able to adjust to permanent status. Temporary workers could bring family members with them for one two-year period if they met income and health insurance conditions.

Additional temporary visas would become available for seasonal nonagricultural workers (such as resort staff) who enter the United States for 10 months at a time, with two-month stays at home between each 10-month period.

The bill would increase the cap on H-1B visas from the current 65,000 (with certain groups exempt from that cap) to 115,000 per year.

Permanent immigration reforms. The feature that most sets the bill apart from previous immigration reform proposals is a provision that would drastically alter the allocation of permanent immigration visas (green cards), shifting the system from one dominated by family-sponsored categories to a more even mix of family sponsorship and skills-based entry.

Family sponsorship categories for adult children and siblings would be eliminated, and sponsorship of parents would be limited by a numerical cap. Those whose applications were submitted before May 2005 for a family immigration visa in a category slated for removal would be issued a green card in an expedited way, likely within eight years, as a way to clear the sometimes decades-long backlogs for family-based visas.

The numbers taken from the family immigration system would be allocated to a new merit-based (or points system) of entry, replacing the current employer-sponsored system. Potential immigrants could earn points for work experience, employment in a skilled or fast-growing occupation, educational attainment, and English ability, as well as a limited number of points for being the adult children or siblings of U.S. citizens or lawful permanent residents (LPRs). Immigrants earning the most points each year would be awarded entry until the numerical cap was reached.

The bill would eliminate the diversity visa, which uses a lottery to select LPR applicants from countries that send few migrants to the United States.

Legalization. The bill would offer a path to permanent status for all unauthorized immigrants present in the country since January 1, 2007. Unauthorized immigrants would first apply for a provisional Z visa after paying fees and fines and passing a background check.

The Z visa would be valid for four years; legalizing immigrants could then renew the visa after paying the necessary fee and demonstrating either English proficiency or enrollment in an English class. The Z visa could be extended again if the immigrant paid another fee and passed the naturalization English and civics exams. Once the triggers were met and backlogs of family sponsored immigrants were cleared, Z-visa holders could begin applying for lawful permanent residence.

To do so, Z-visa holders who were the head of household would have to return to their country of origin to submit an application, pay a $4,000 penalty and application fees, and undergo a health screening. Z-visa holders would have five years to obtain permanent residence through a modified version of the points system.

Since its introduction, various components of the Senate proposal have come under fire from all sides of the debate. Conservative groups said Republican senators who supported the proposal were "caving" on conservative principles of strongly enforcing the border and following the rule of law. Conservatives also opposed the legalization program, which many equated to an amnesty.

On the left, some criticized the merit-based system, claiming it would divide families and mark a drastic change to U.S. immigration policy.

Labor advocates opposed the temporary guest worker program, which they said would create an underclass of workers and bring down the wages of native workers.

Immigrant advocacy groups said that the application fee for the Z visa, which could cost up to $9,000 for a family of four, was too high and the "touchback" provision too burdensome. Further, they said the bill placed too many overall restrictions on immigrants seeking a path to legalization/citizenship.

Employers were also unhappy with the legislation, claiming it would not cure the severe labor shortages they foresee in the coming decade. Employers of high-skilled workers said the merit-based points system would "take the hiring decision out of [employers'] hands and place it in the hands of the federal government." Employers of low-skilled workers claimed that a merit-based system would be skewed in favor of more highly skilled and educated workers, resulting in labor shortages in certain industries.

Cost Estimate

The Congressional Budget Office (CBO) concluded that the overall fiscal impact of the bill would be relatively small over the next two decades with additional expenditures mostly offset by additional revenues. The estimate assumed that the bill would only cut illegal immigration by 25 percent, and that the bill's guest worker program would add approximately 500,000 unauthorized immigrants over the next decade.

Border security and verification measures that would trigger the guest worker program would not be reached until 2010, according to CBO, despite hopes within the Bush administration to begin the program before the president leaves office in January 2009.

The CBO estimate was based on the Senate bill as amended between May 22 and May 24. CBO acknowledged that amendments approved after May 24 could significantly impact the cost estimate.

If the Senate passes a comprehensive reform bill, the House of Representatives is likely to take up the issue. The House debate could start with either the Senate-passed bill, the STRIVE Act, or a new bill altogether.

USCIS Fee Increases. Immigrants applying for citizenship or temporary work permits will pay 66 percent more than they do now, based on a new regulation that will go into effect July 30, 2007. U.S. Citizenship and Immigration Services (USCIS), the federal agency that handles immigrant visas, confirmed that fee increases first unveiled in January will go into effect next month. Under the proposal, the application fee for citizenship will increase from $330 to $675, and work permit fees will increase from $180 to $340. The application fee for lawful permanent residency will increase from $325 to $1,010, or to $930 for applicants age 79 and older. The proposal has encountered criticism because of the potential effects the increases would have on naturalization rates. USCIS has stated that the increases are based on a comprehensive review of internal costs, and will be used to cover processing costs and benefit adjudications.

U.S. Passports. U.S. citizens traveling by air to Canada, Mexico, the Caribbean, and Bermuda can temporarily travel without a passport, provided they can show proof that they have applied for one, the Department of Homeland Security (DHS) announced June 8. The policy change is in response to longer than expected processing times for passports, resulting from a massive increase in demand. The State Department expects to issue about 17 million passports this year, up 42 percent from last year. Air travelers must show official proof of application from the State Department in order to be excused from the passport requirement. The exemption, which does not affect entry requirements to other countries, will be in effect until September 30, 2007.

Iraqi Refugee Resettlement. DHS has approved the refugee applications of 59 Iraqis as of May 31 following its announcement of a streamlined process for Iraqi refugee admissions. In February, the Bush administration said the government plans to resettle 7,000 Iraqis in fiscal year (FY) 2007, a dramatic increase from the 202 Iraqis resettled in FY 2006. The Responsibility to Iraqi Refugees Act, introduced in the House in May, would increase by at least 20,000 the number of Iraqis eligible for resettlement. The bill would also admit 15,000 Iraqis who have worked as translators for the United States or United Nations agencies under a "special immigrant status."

Read the Department of Homeland Security's press release on the admission of Iraqi refugees here.

State Department Trafficking Report. The State Department's 2007 "Trafficking in Persons Report" added seven countries to its list of worst offenders, including Arab allies Bahrain, Kuwait, Oman, and Qatar, as well as Algeria, Malaysia, and Equatorial Guinea. The annual report focuses on whether or not foreign governments prosecute the trafficking of persons for sexual exploitation and forced labor, and to what extent the government is capable of protecting vulnerable groups such as women and children. Both China and India, which human rights groups have criticized for not aggressively persecuting human trafficking, were conspicuously absent from the worst offenders category but were still deemed "deficient."

Material Support Bar Waiver. Victims of Tier I and Tier II terrorist organizations are now exempt from provisions of the USA Patriot Act that bar individuals who have provided material support to a terrorist organization from entering the United States. Advocacy groups had criticized the bar for prohibiting the entry of individuals who provided support to terrorist organizations under duress, and prohibiting the entry of individuals who combated authoritarian or dictatorial governments (including in collaboration with the United States). Tier I and Tier II terrorist organizations are groups the U.S. State Department lists as having either carried out a terrorist attack or having the potential to do so. Previous waivers exempted specific groups — such as Burmese Karen and Cuban exile groups — from being categorized as terrorist organizations.

GAO Report on Immigration Lawyers. The three DHS agencies that handle immigration litigation are facing a potential shortage of attorneys according to a recent GAO report. USCIS, Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP) have all experienced workload increases but have failed to implement procedures to document and methodologically predict staffing needs, the report says. USCIS attorneys principally defend the agency in federal lawsuits and represent USCIS in visa petition proceedings before the Department of Justice's Board of Immigration Appeals; ICE attorneys are responsible for cases involving the removal of aliens illegally present in the United States, workplace enforcement, and alien smugglers and human traffickers; and CBP attorneys represent the agency in criminal judicial actions.